A secret memo that urged the army to shed its inhibitions in the “war” against the IRA and be “suitably indemnified” could prompt a fresh wave of legal action, lawyers in Northern Ireland have said.

The expression of enthusiasm for military action with apparent disregard for any legal consequences, at the height of the Troubles in July 1972, has surprised human rights groups, who are still pursuing justice for victims.

Released through the public records office in Belfast, the minutes record a meeting at Stormont Castle chaired by Willie Whitelaw, then Northern Ireland secretary. Also in attendance were the GOC (the most senior army officer in the province), Paul Channon MP, the deputy chief constable and senior civil servants.

The document, marked “secret”, has only recently come to the attention of campaign groups and lawyers who, in the wake of the inquiry into the Bloody Sunday massacre in Derry, have focused on re-examining killings by the security forces.

It was a pivotal moment in the Troubles. Gerry Adams, Martin McGuinness and other republican leaders had just returned from abortive face-to-face talks with Whitelaw at Channon’s home in Chelsea. That weekend fighting had broken out between troops and the IRA over the allocation of houses in west Belfast.

Dated Monday 10 July 1972, the three-page paper lists “conclusions” of a meeting immediately following the breakdown of the Provisional IRA’s two-week-long truce.

It notes that Whitelaw would reveal the existence of the clandestine talks, “put the blame for the ending of the ‘truce’ fairly and squarely on the Provisionals who must now take the consequences”, and “announce the government’s intention to carry on the war with the IRA with the utmost vigour”.

It added: “The GOC would see UDA [the loyalist paramilitary Ulster Defence Association] leaders and impress upon them that while their efforts as vigilantes in their own areas were acceptable, their presence in any riot or shooting situation could not be tolerated.”

In terms of military response, it ordered that: “The army should not be inhibited in its campaign by the threat of court proceedings and should therefore be suitably indemnified.”

Mark Thompson, director of Relatives for Justice, which campaigns on behalf of victims, said: “The discovery of this document indemnifying British soldiers from the threat of court proceedings whilst they took their ‘war’ to nationalist communities with the ‘utmost vigour’ is the first official documented evidence of a policy amounting to impunity.

“It is a clear amnesty being put in place for what would later occur, the inevitable loss of life. In 1972 the British army killed 79 people. Not one soldier was held to account for these killings.

“This document provides an important insight into the mindset of the British government and those directly involved in and responsible for ‘security’ and its policy development – a policy that went on to have disastrous consequences for our entire community. Many observers will view this document as sectarian in its outlook and strategic approach.

“Despite their involvement in sectarian murders, the UDA was not [at that time] a proscribed organisation. They were permitted to patrol areas and exist alongside the RUC and British army at a time when intelligence would have clearly shown the UDA to be involved in sectarian murders.”

That Sunday in July 1972, in fact, five people had been shot dead by republican paramilitaries, and six Catholics, including a priest, were killed by the British army.

Kevin Winters, a Belfast solicitor who represents relatives seeking justice, said: “It will lead to a request for the police’s historical enquiries team to re-examine all the army killings that they have looked at to date.

“The consequences of the document should permeate a lot of their investigations. It potentially strengthens grounds for fresh inquests. It could generate a huge amount of legal proceedings. If that was the mindset … it would be grounds for a series of [out of time] civil actions for unlawful killings.”

Paul O’Connor, of the Pat Finucane Centre in Derry, which also examines files from the period, said: “This document tells us something about the culture [at the time]. We deal with cases of people who were being kidnapped at UDA checkpoints and who were tortured and murdered. That ties in with allowing UDA members to join the Ulster Defence Regiment. It was the worst months of the Troubles.”

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The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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